Reynolds v. Rehabcare Group East Inc., 4:07-cv-00388.

• Decision Date: 12 December 2008
• Docket Number: No. 4:07-cv-00388.,4:07-cv-00388.
• Citation: 590 F.Supp.2d 1107
• Parties: Pamela F. REYNOLDS, Plaintiff, v. REHABCARE GROUP EAST INC., Defendant.
• Court: U.S. District Court — Southern District of Iowa

590 F.Supp.2d 1107

Pamela F. REYNOLDS, Plaintiff, v. REHABCARE GROUP EAST INC., Defendant.

No. 4:07-cv-00388.

United States District Court, S.D. Iowa, Central Division.

December 12, 2008.

Thomas S. Reavely, Whitfield & Eddy, PLC, Des Moines, IA, Beth A. Townsend, Townsend Law Office PLC, West Des Moines, IA, for Plaintiff.

Scott M. Brennan, Davis Brown Koehn Shors & Roberts, Des Moines, IA, George R. Wood, Littler Mendelson PC, Minneapolis, MN, for Defendant.

ORDER

ROBERT W. PRATT, Chief Judge.

Pamela Reynolds ("Plaintiff") filed the present action against RehabCare Group East Inc. ("Defendant" or "RehabCare") on August 29, 2007 (Clerk's No. 1), alleging that Defendant violated the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA"), 38 U.S.C. §§ 4301-33. Specifically, Plaintiff claims that Defendant violated § 4311 of USERRA by discriminating against her because of her military service and that Defendant violated §§ 4312-13 by refusing to offer her reemployment after her return from active military service. Defendant filed an Answer to Plaintiffs Complaint on October 1, 2007. Clerk's No. 11. On October 4, 2007, Plaintiff filed a Motion for Preliminary Injunction. Clerk's No. 13. Following a hearing, the Court denied Plaintiffs request for a preliminary injunction in an Order dated January 29, 2008. See Reynolds v. Rehabcare Group East Inc., 531 F.Supp.2d 1050 (S.D.Iowa 2008).

On March 26, 2008, Defendant filed the present Motion for Summary Judgment. Clerk's No. 33. After receiving an extension of time for the purpose of conducting additional discovery, Plaintiff filed a Resistance to Defendant's Motion for Summary Judgment on August 15, 2008. Clerk's Nos. 49-50. Defendant filed a Reply to Plaintiffs resistance on September 3, 2008. Clerk's No. 57. Neither party has requested a hearing and the matter is, therefore, fully submitted.

I. FACTUAL BACKGROUND

Plaintiff is a licensed physical therapist in the State of Iowa. Def.'s Material Facts ¶ 21. In 2002, Plaintiff began providing physical therapy services at Green Hills Retirement Community ("Green Hills") in Ames, Iowa. Id. ¶ 22. Green Hills has contracted with LifeCare Services, Inc. ("LifeCare") to provide management services to Green Hills' residents. Id. ¶ 2. Rod Copple ("Copple"), Green Hills' Executive Director, is an employee of LifeCare. Id. ¶ 3. Various independent entities provide vendor services at Green Hills. Id. ¶ 4. One such vendor service provided to Green Hills' residents is rehabilitative therapy. Id.

At no time has Plaintiff ever been employed by Green Hills. Id. ¶ 5. Rather, Plaintiff provided physical therapy services at Green Hills beginning in 2002 pursuant to Green Hills' contract for rehabilitation services with Plaintiffs employer, MJ Care. Id. ¶¶ 22-23. MJ Care's contract with Green Hills ended in early 2004. Id. ¶ 24. Green Hills then entered into a contract with Progressive Rehab Associates ("Progressive"), a company that provides rehabilitation services in various communities throughout Iowa. Id. ¶¶ 6, 25. Progressive provided rehabilitation services at Green Hills from May 1, 2005 to June 30 2007. Id. ¶ 7. Plaintiff became an employee of Progressive in May 2004, id. ¶ 26, and provided rehabilitation services at Green Hills for Progressive until she was deployed to active military duty on March 23, 2006.¹ Id. ¶ 28. Plaintiff served on active duty at Fort Hood, Texas from March 23, 2006 to July 8, 2007. Id. ¶ 30.

On May 3, 2007, while Plaintiff was stationed at Fort Hood, Progressive gave Green Hills sixty days notice that it was terminating the contract for rehabilitation services, apparently due to Green Hills' decision to become a Skilled Nursing Facility ("SNF").² Id. ¶¶ 31-33. Upon learning of Progressive's decision in this regard, Green Hills began the process of locating a new vendor for rehabilitation services.³ On July 26, 2007, Green Hills ultimately contracted with Deerfield Retirement Community ("Deerfield"),⁴ which in turn, subcontracted with RehabCare, a company that provides rehabilitation services for health care facilities nationwide, for the provision of rehabilitation services at Green Hills. Id. ¶¶ 11-13, 37-38. RehabCare was aware of Plaintiff's military service commitments prior to signing the contract with Deerfield to provide services at Green Hills. Pl.'s Material Facts ¶ 77. Plaintiff has never been employed by RehabCare. Def.'s Material Facts ¶ 14.

At the time of her deployment, Plaintiff was receiving $51.28 per hour as an employee of Progressive. She worked 30 hours per week, had three weeks of annual vacation, and was allowed to participate in Progressive's 401K program. Hr'g Tr. at 39. On June 5, 2007, during her "terminal leave" from the military,⁵ Plaintiff contacted Progressive and Copple and stated that she was "reapplying for [her] position as physical therapist at Green Hills," pursuant to USERRA. Pl.'s App. at 221. In a post script to Copple specifically, Plaintiff stated her understanding that "Progressive is ending its relationship with Green Hills" and asserted that any successor contractor would be "a `successor in interest' and covered by USERRA." Id. A copy of Plaintiff's letter was forwarded to Rehab-Care.⁶

Plaintiff had ongoing discussions with Melissa Violette ("Violette"), the regional manager of operations for RehabCare, beginning in June 2007. See generally Hr'g Tr. (Pl.'s Testimony at 34-59). Plaintiff maintained during these conversations that RehabCare was obligated to "reemploy" her under USERRA. Id. Violette told Plaintiff that she would provide the information to her supervisors, as RehabCare had a policy of not making employment offers of any sort until such time as it actually had a contract with a specific retirement home in place. Id. at 43. After their conversations, Violette sent Plaintiff an application for employment with Rehab-Care.

Plaintiff filled out the application on July 11, 2007, making substantial changes to the form of the application. See Def.'s Ex. E. Specifically, Plaintiff crossed out the word "employment" in the heading, "Application for Employment," and hand-wrote "ReEmployment/USERRA" in its place. Plaintiff further wrote: "I am an employee of Progressive Rehab Associates returning from 16 months of Active Duty with the United States Army. I am seeking reemployment as physical therapist at Green Hills Retirement Community." Id. Plaintiff also crossed out the "Applicant Statement," certifying that the information in the application was true and acknowledging that employment would be at-will, and wrote "Not applicable-See USERRA." Id.

Violette asked Plaintiff to meet her at Green Hills on July 27, 2007, the first day that RehabCare was to be present at Green Hills. Hr'g Tr. at 46. Plaintiff met with Violette for approximately an hour or an hour and one-half, during which time they reviewed patient records and Plaintiff gave Violette a tour of the building. Id. at 46-47. Plaintiff also introduced Violette and another RehabCare employee to various Green Hills staff. Id. at 49. Following the tour, Plaintiff and Violette spoke privately. Id. at 50-51. Violette told Plaintiff that RehabCare really wanted to bring Plaintiff on as an employee, but that RehabCare did not think that USERRA applied to it because RehabCare did not purchase any of Progressive's assets. Id. at 51. Plaintiff responded that she believed that USERRA did apply and that her lawyer would contact RehabCare's lawyer. Id. Violette informed Plaintiff during this meeting that RehabCare had offers of employment for Plaintiff to employ her as a physical therapist at Green Hills, but Plaintiff refused to hear the offers, maintaining that "if they are not going to honor the USERRA law and reinstate me into my job that I had prior to leaving, I didn't want to hear the offer." Id. at 83. Since that time, Plaintiff has not had any further personal communication with RehabCare, except in the context of this litigation, and she has not worked for RehabCare in any capacity.

II. STANDARD OF REVIEW

The plain language of Federal Rule of Civil Procedure 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "[S]ummary judgment is an extreme remedy, and one which is not to be granted unless the movant has established his right to a judgment with such clarity as to leave no room for controversy and that the other party is not entitled to recover under any discernible circumstances." Robert Johnson Grain Co. v. Chem. Interchange Co., 541 F.2d 207, 209 (8th Cir.1976) (citing Windsor v. Bethesda Gen. Hosp., 523 F.2d 891, 893 n. 5 (8th Cir.1975)). The purpose of the rule is "`not to cut litigants off from their right of trial by jury if they really have issues to try,'" Poller v. Columbia Broad. Sys., Inc., 368 U.S. 464, 467, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962) (quoting Sartor v. Ark. Natural Gas Corp., 321 U.S. 620, 627, 64 S.Ct. 724, 88 L.Ed. 967 (1944)), but to avoid "useless, expensive and time-consuming trials where there is actually no genuine, factual issue remaining to be tried." Anderson v. Viking Pump Div., Houdaille Indus., Inc., 545 F.2d 1127, 1129 (8th Cir.1976) (citing Lyons v. Bd. of Educ., 523 F.2d 340, 347 (8th Cir.1975)).

The precise standard for granting summary judgment is well-established and oftrepeated: summary judgment is properly granted when the record, viewed in the light most favorable to the nonmoving party and giving that party the benefit of all reasonable inferences, shows that there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Harlston...